Wednesday, January 23, 2008

Jean-Marc Bosman was catapulted into the headlines in 1995 by a "landmark" ruling from the European Court of Justice (ECJ). The Bosman case transformed the player transfer system and changed the make-up of club sides throughout Europe by effectively ending limits on "foreign" players in clubs in Europe. Nearly every GAA fan knows that the consequences for soccer have been far-reaching and all would agree that a Bosman scenario would be catastrophic for Gaelic games. No one wants to see a transfer system in place because the county is fundamental to Gaelic games. But how professional or amateur do our games have to be for the Bosman ruling to apply? And where does the grant leave us on that question?

The GAA Central Council claims that "nothing in this agreement shall be allowed to undermine the amateur status of Gaelic games". The Bosman ruling would apper to validate this claim: the essential difference between an amateur and a professional or-semi-professional is that the professional earns a salary under contract and is thus regarded as an employee, and that his activity as a player is not to be regarded as purely marginal. Therefore, it would seem the grant would have little or no effect. But, it's not just the Bosman ruling we need to be concerned about.

In a less-celebrated case five years after Bosman, Christelle Deliège*, a Belgian judoka (a practitioner of judo is known as a judoka) who practised judo at an international level, challenged the Belgian Judo League's (BJKL) federation-based system of selection of competitors for international competitions. The importance of this case for the GAA and the grants system is not the decision on the dispute itself, which concerned the authority of the BJKL to determine selection for participation in the Olympic Games, but rather the court's conclusion in relation to Ms Deliège's status.

Although the case concerned the participation of Ms Deliège in an international tournament for which she would not be paid, Ms Deliège claimed that she practiced judo professionally or semi-professionally. The BJKL disagreed, arguing that judo is a sport which, in Europe and in Belgium in particular, is practised by amateurs. It is the court's analysis and determination of this question-where the distinction between amateur and professional lies- that is of interest to the GAA.

The GAA and the GPA that all parties involved "state their absolute commitment to the maintenance of the amateur status" is worthless.

Notably, the BKJL claimed that judo was an activity that is not pursued for profit, but which aims to satisfy social and cultural aspirations. No doubt, the GAA would too. The amendment added to the agreement with the GPA that all parties "state their absolute commitment to the maintenance of the amateur status" tends to suggest that the GAA thinks a claim, or affirmation, of amateur status by those involved-both the players and the Association itself-offers some sort of legal protection. It doesn't: the court noted that, although relevant, the mere fact that a sports association or federation unilaterally classifies its members as amateur athletes does not in itself mean that those members do not engage in economic activity.

The factors that determine whether members engage in economic activity were then analysed by Cosmas, the Advocate General (the AG advises the court on the legal matters ahead of the final decision) in the case. Cosmas' analysis of Ms Deliège's activities and conclusion that her practice of judo constituted an economic activity should alarm the GAA, as it undermines the assertion that the grants agreement does not harm the GAA's amateur status.

Firstly, Cosmas pointed out that the Ms Deliège the size of the grants Ms Deliège received from the federation were irrelevant. It was the legal nature of the 'contributions' that she recieved that mattered. Contributions or grants to athletes "were analysed from the point of view of the possibility it gives to the advanced level sportsman, who receives the contributions to devote himself to the sport as would a professional sportsman." Although it is arguable the sums of money which the grant will involve will not permit GAA players to pursue their sporting career in the same way and under the same conditions as a professional, they are a start down that road. According to the agreement between the GAA, the GPA and the government the grant is designed "to meet additional costs associated with elite team performance and to encourage aspiring teams and players to reach the highest levels of sporting endeavour". The grants will be awarded on the basis of "standards and performance-based criteria".

Secondly, although the Advocate General distinguished amateur athletes from others who "carry out their activity on a continual basis and receive financial support the objective of which exceeds the mere improvement of their performance." Critically for the GAA, the Advocate General concluded that the regular payment of aid by federations to their champions often extends beyond the context of performance enhancement. High-level athletes provide an important service to the sport's governing bodies-their success makes them idols helping attract young people to the federation, they are a magnet for sponsors and provide an argument for sports organisations to rely on when seeking a larger share of publicly-funded subsidies. In certain cases these non-amateur athletes provide to the governing bodies, of a so-called amateur sport, services in return for which it receives various forms of material or financial aid on a regular basis. These athletes pursue an economic activity which falls within the scope of EU law.

The Advocate General's reasoning would tend to suggest that it does not matter whether the players receive the grant directly from the federation or from elsewhere; what matters is that the grants are paid to them consistently over a period of time and are dependent on their participation in the sport. The hullabaloo over whether it is the GAA or the Sports Council that pays the grant would then be irrelevant. Paying a grant for participating in a sport establishes an economic link under EU law.

Thirdly, the Advocate General also considered it necessary to look at whether the sporting activities themselves have an economic dimension. If the organiser of a sporting competition offers athletes an opportunity to compete with others, and, at the same time, the athletes, by participating in the competition, enable the organiser to put on a sports event which the public pays to attend, which generates television broadcasting rights, and which, may be of interest to advertisers and sponsors, then it constitutes an economic event. That is already the case in GAA today.

Finally, Ms Deliège's individual sponsorship contracts were also taken into condisderation. Cosmas determined that it was wrong to separate completely an athlete's performance and sporting activity from the advertising service provided to the sponsors as sporting performance and advertising services are so closely linked. Advertising through sponsorship requires high-level athletes who are known to the general public precisely because of their participation in major sporting events. Products as diverse as Ivomec 20 (Joe Cooney) and Club Energise (the GPA) have capitalised on the profile of the players and the GAA to capture their markets for many years now.

From the combination of the various factors outlined above the Advocate General concluded that Ms Deliège was in principle protected by EU law and in particular by the rules on freedom to provide services. In other words, she had the same protection under EU law as Bosman did.

Although Gaelic players may not yet qualify under these conditions as non-amateur athletes-like Ms Deliège did-and therefore be protected by EU law, it is clear that the closer the link between sport and economic activity the more relevant the rules of EU law. Paying a grant to players strengthens this link. Paying a grant to players harms the GAA's amateur status.